Madison County State’s Attorney Tom Gibbons is urging a judge to deny Treasurer Kurt Prenzler’s request for a new attorney in a class action lawsuit alleging damages resulting from a bid rigging scheme.

While Illinois law does allow for a “special prosecutor” to be appointed under limited circumstances, Gibbons asked the court to “allow the Madison County State’s Attorney’s Office to continue our zealous defense of Mr. Prenzler and the Madison County Treasurer’s Office, in the interest of the People of Madison County,” Gibbons stated Feb. 5 in answer to Prenzler's motion for a new attorney.

The litigation was filed in 2013 by distressed property owners who claim they suffered fraudulently inflated tax sales under former treasurer Fred Bathon.

Bathon, who served as treasurer from 1998 until his resignation in 2009, pleaded guilty in 2013 to violating the Sherman Antitrust Act in relation to rigged tax sales. He was sentenced to 30 months in federal prison. Tax buyers John Vassen, Scott McLean and Barrett Rochman also pleaded guilty in connection with the scheme and are serving prison sentences.

In Prenzler’s Jan. 22 petition, he says his 2014 election campaign focused “in substantial part” on Bathon’s conduct in the illegal tax bidding, and that his “outspoken opposition” of the former Madison County officials’ actions may put him in a position inconsistent with Madison County and its defense in this case.

“As such, the States Attorney of Madison County, in an effort to defend the County as well as defend the undersigned, may find himself in a position where the undersigned and Madison County have different positions on various matters of defense,” Prenzler’s petition states.

He added that his counsel has already taken some positions before the court that he would not have preferred, but notes that the State’s Attorney’s Office has not performed any misconduct.

As a result, Prenzler asks the court to allow him to choose his own attorney, to be paid for out of either the States Attorney budget or the Madison County Treasurer budget.

In his response, Gibbons said his office does not allow political considerations to get in the way of executing its duties.

Furthermore, he said he is unaware of any claims or legal positions advanced on behalf of all Madison County defendants that are at odds with Prenzler’s position.

“At all times, we have asserted that Madison County, IL, and Kurt Prenzler in his official capacity as Madison County Treasurer do not bear any responsibility in this case and that any liability to be found in this case should fall solely and squarely on the shoulders of defendant Fred Bathon and his criminal co-conspirators, and not on the taxpayers of Madison County,” Gibbons wrote.

“Taking any position to the contrary would be a violation of our oath of office and duty to protect citizen taxpayers by properly defending them from the claims of plaintiffs. I have no reason to believe that Mr. Prenzler believes otherwise. However, if I am mistaken, he should have an opportunity to clarify this, in camera, to this court."

Gibbons also disagreed that a conflict of interest exists.

“At all times, the Madison County State’s Attorey’s Office, through all of the Assistant State’s Attorneys assigned to defend this matter, have advocated and advanced only those legal positions that fulfill our duty to protect and defend citizens and taxpayer money from an adverse judgment," he wrote. "I am certain that Mr. Prenzler would not advocate that we chart a course in this litigation that will put at risk the legal and financial well-being of citizens, at large."

Gibbons also informed the court that Prenzler’s attorney Stephen J. Maassen is not the first Assistant State’s Attorney assigned to defend the treasurer in this case. Initially, he assigned all county defendants the same defense team from Heyl Royster. After 11 months working together on this case, Prenzler requested his own attorney.

“Although I was not inclined to incur the additional cost to taxpayers resulting from the addition of another attorney and did not want to divide the defense of the case, I agreed to Mr. Prenzler’s request,” Gibbons stated.

As a result, Gibbons appointed Maassen to represent Prenzler, who he says has provided “diligent and appropriate” representation and has not performed any misconduct in his representation.

“At all times throughout this litigation, the State’s Attorney’s Office has fulfilled our oath and duty to protect the people of Madison County in our representation of the Madison County Treasurer’s Office,” Gibbons wrote. “We have even taken the extra step of providing, at Mr. Prenzler’s request, an attorney that is independent of the defense team that was originally chosen, despite the more than $12,000 additional cost to taxpayers for the independent representation.

“I do not believe that it would be responsible or legally appropriate to appoint yet another attorney for Mr. Prenzler in this case."

He argued that such a move would cost more taxpayer money to get another attorney up to speed on the case, would divide the defense strategy of the county defendants, would not protect the public interest and would only delay the progress of the case.

The case is presided over by visiting judge William Becker of Clinton County.

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